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87 Cards in this Set

  • Front
  • Back

Personal jurisdiction requirements

Satisfy state statute; AND
Satisfy the Constitution

A court has personal jurisdiction over The D when the D is
  • domiciled in the forum (general)
  • consents
  • voluntarily present in the forum when served with process; or
  • Has sufficient minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice (specific)

Minimum Contacts is satisfied when

  • There is a relevant contact between D and the forum state that is foreseeable and the result of purposeful availment
  • The contact is related to P's claim; AND
  • jurisdiction would be fair under the circumstances (consider the burden on D and witnesses, the state's interest, plaintiffs interests)

The Court has general PJ over the D when the D is

Individual / Corporation

Individual: domiciled

Corporation: state of incorporation, principal place of business

Cases a state court can hear and cases a federal court can hear

State: Everything except cases arising under certain federal laws (patent, bankruptcy, some federal securities and antitrust claims)

Federal: cases where there is

  • Diversity of citizenship; OR
  • federal question

In every claim (or supplemental jurisdiction)

Diversity of Citizenship Requirements

- green card?

- US Citizen domiciled abroad?

  • The case is between either citizens of different states or a citizen of a state and a citizen of a foreign country (fails if any P is a citizen of the state state as any D); AND
  • The amount in controversy exceeds 75k

- There is no SMJ if a party holding a green card resides is in the same state as an opposing party

  • A US citizen domiciled abroad is not a citizen of any state and is not an alien, and thus cannot be sued on teh basis of diversity jurisdiction

In which state is a person a citizen for purposes of diversity jurisdiction?

- how does it change?

Where the person is domiciled. A person can establish citizenship/domicile in a new state by

  • Being physically present in the new state; AND
  • Having the intent to make that your permanent home

In which state is a corporation a citizen?

State in incorporation; AND

State of principal place of business

Where is the principal place of business?

"Nerve center"; where managers direct, coordinate, and control corporate activities

In which state state is an unincorporated association (partnership/LLC) a citizen

In every state that one of the associations members is a citizen

Diversity 75k rules


  • Do not count interests on claims or costs
  • Whatever the P claims in good faish is OK unless it is clear to a legal certainty that she cannot recover more than 75k
  • Claims can be aggregated where there is 1P and 1D EXCEPT when a party brings a joint claim, the number of parties is irrelevant
  • Equitable relief will satisfy the requirement if the injunction would benefit plaintiff by more than 75K, or hurt the D by more than 75K

Federal Question SMJ Requirement

P's claim itself must arise under federal law. In other words, P must be enforcing a federal right

Supplemental Jurisdiction

  • If the Court has SMJ over one claim, it has discretion to hear other claims as well
  • The claim must share a common nucleus of operative fact (arise out of the same transaction or occurrence) with the claim that invoked SMJ
  • BUT in a diversity case, plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity


- deadlines

D sued in state court can remove to the "embracing" federal court if

  • the case could have originally been filed in federal court; and
  • for cases removed bc of diversity, no D is a citizen of the state where the action is filed


  • All of the D's that were served must move for removal w/in 30 days of service of the first paper that shows the case is removable (starts anew if a new defendant is served)
  • A case cannot be removed if more than one year has passed since the case was filed in state court


  • If removal was improper, a federal court can remand the case back to state court.
  • If P thinks that removal was improper for a reason other than SMJ, P must file w/in 30 days of when notice of removal is filed
  • If P thinks removal was improper bc of lack of SMJ, can move at any time

Erie Doctrine

Does Fed Ct apply state or federal law?

  1. Is there a valid federal law on point that directly conflicts with state law? If yes apply federal law
  2. If there is no federal law on point, the judge may apply state law if the issue to be determined is substantive

  • clearly substantive: elements of a claim or defense, statute of limitations, rules for tolling statutes of limitations, and conflict of law rules)
  • Factors to determine if the issue is substantive (if it does not fit in the 4 categories above): outcome determinative, balance of interests, avoid forum shopping

Federal courts can make common law

  • to fill gaps in a statute (i.e. statute does not provide a statute of limitations for the claim)
  • international relations, admiralty disputes between states, the right to sue a federal officer for violating one's federal rights


Where is proper?

What if improper?

P may lay venue in any district where:

  • all D's reside (special rule: if all D's reside in different districts of the same state: P can lay venue in the district in which any D resides); OR
  • a substantial part of the claim rose

If the original venue is improper, the court may transfer or dismiss

Where does a D reside for venue purposes

Human: in the district where domiciled

Business (corp or not): in all districts where the D is subject to PJ for the case

Transfer of Venue

  • Ct may transfer a case to another court where the case could have been filed (proper venue + PJ over D).

- The court will consider public (what law applies, what community should be burdened with jury service, local controversy in local court) and private factors (convenience of the parties and witnesses).

- If there is a forum selection clause, the court will almost always transfer to that court

- the burden is on the Party seeking transfer

  • The court can transfer to any district if all parties consent and the court finds cause for the transfer

What is the proper venue when the D is a nonresident of the US?

The nonresident may be sued in any district.

Forum Non Conveniens

If the proper venue is in a foreign country then transfer is impossible. If the judge decides this is the case he will either dismiss or stay the action

- the other court must be available and adequate

Who can serve process

any non party who is at least 18 years old

Methods of service

  • Personal service
  • Substituted service - Process is served at D's usual abode, to someone of suitable age and discretion who resides there
  • Service on D's agent
  • Methods for serving process that are permitted by state law
  • Waiver by mail - mail to D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form. If D executes and mails waiver form to P w/in 30 days, D waives formal service of process. When P receives the waiver, must file in federal court

Service of other documents

- Serve these documents by delivering or mailing the documents to the party's attorney

- can be by email if otherside agrees

- can receive extra time to respond if the documents were mailed

Complaint requirements

  1. Statement of grounds of subject matter jurisdiction
  2. Short and plain statement of the claim, showing entitled to relief (facts supporting a plausible claim)
  3. Demand for relief sought

Matters that must be pleaded with particularity or specificity

Fraud / mistake / special damages

Defendant's response to complaint

  • Motion to dismiss, answer, motion for more definitive statement, motion to strike (immaterial or scandalous things)
  • Response must be made in 21 days after service of process (if D waived service, you get 60 days to respond instead)

Which 12b defenses can be brought at any time and which can be waived

  • Can be brought at any time: SMJ, failure to state a claim, failure to join indispensable party
  • The rest must be in the first rule 12 response

What to put in answer

- admit, deny, DKI (must investigate things in your control)

- affirmative defenses

- counterclaim

P's response to counterclaim

Respond under R12 in 21 days

Compulsory Counterclaim

A counterclaim is compulsory when it arises from the same transaction or occurrence as Ps claim.

- court must have SMJ over the counterclaim


Can only be brought when it arises from the same transaction or occurrence as the underlying action, but it is never compulsory

Additional claims

Once you file any claim you can join an additional claim to it - even if that claim has nothing to do with the others, so long as there is SMJ

Right to amend Pleadings

- P and D

  • Plaintiff has a right to amend complaint once within 21 days after D serves the first R12 response
  • D has a right to amend the answer once w/in 21 days of serving the answer

Amending w/o right

- Must seek leave of court. Will be granted if justice so requires. Court will consider delay, prejudice, futility, of amendment


At or after trial, P can move to amend the complaint to conform to the admitted evidence

Amendment after the SOL has run (relation back)

- If, after filing a timely complaint, the SOL expires, and you want to amend to add a claim, the amended pleading will be considered timely if it "relates back"

- Amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading

Amending to change a D after the statute has run

The amendment will relate back if

  1. it concerns the same conduct, transaction, or occurrence as the original;
  2. the new party knew of this case w/in 120 days of its filing; AND
  3. she also knew that, but for a mistake, she would have been named originally

Supplemental pleadings

These are used to update the pleadings (i.e. adding a claim) after they have been filed

Rule 11 Sanctions

- what does it require?

- against whom?

- applies to all docs except discovery

- When an attorney signs a doc, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

  1. The paper is not for an improper purpose,
  2. the legal contentions are warranted by law; and
  3. the factual contentions and denials of factual contentions have evidentiary support

- Rule 11 sanctions may be ordered against the party, the attorney, or the firm

Initial disclosure

W/in 14 days of the rule 26(f) conference, each party must disclose

  • Identity of persons who have discoverable info that you may use to support your claim or defenses

- provide name, number, and subject on which they have information

- if you fail to identify you cannot use that party as a witness

  • Documents and things that you may use to support your claims or defenses that are in your custody or control

- must produce the documents or a description

- if you fail to disclose you cannot use the materials in the case

  • computation of monetary relief and documents supporting it
  • Insurance coverage

Required disclosure: Expert Witness

- At a time directed by the court, each party must identify expert witnesses who may be used at trial and provide a written report prepared by the expert

- Written report must include opinions the expert will express, bases for the opinions, facts used to form the opinions, expert's qualifications, and how much expert is being paid

Pretrial required disclosure

No later than 30 days before trial, parties must give detailed info about trial evidence, including identity of witnesses to testify live or by deposition, and things to be introduced at trial


- files? nonparties? bring documents? travel?

- Deponent testifies under oath, from present recollection (does not need to review)

- to depose a party, serve notice of deposition

- To depose a non party, subpoena the entity

- To require the deponent to bring docs, issue a subpoena duces tecum

- Deponent can be required to travel up to 100 miles from where she resides or is employed


- party only

- respond w/in 30 days of service

- Must respond w/ info reasonably available to you

- Maximum number of interrogatories = 25 Qs

Requests to Produce

- Must respond in writing w/in 30 days of service

- Can be made to non party but use subpoena

- Requesting party specifies the form of the production

Discovery: medical exam

- Must get a court order( requires showing that the person's health is in actual controversy and good cause)

- Can only be used to examine a party or someone in the party's custody or legal control (not employees)

Request for admission

- Written request that someone admit things

- parties only

- Responding party can DKI only if she states that she made reasonable inquiry and cannot find enough info

Duty to supplement discovery

If information you provided through discovery is no longer correct, you must supplement your response

Scope of discovery

- Anything relevant to a claim or defense is discoverable

- Relevant = reasonably calculated to lead to the discovery of admissible evidence


Work Product

= material perpared in anticipation of litigation

- protected from discovery

- Work product, or a portion of the work product, is discoverable if the requesting party can show

  1. substantial need; and
  2. the information is not otherwise available

- Not work product: identity of people with discoverable info, the requesting party's own statements

Court involvement in discovery

  • Protective orders - party can move for a protective order if a discovery request subjects the party to annoyance, embarrassment, undue burden, or expense

- party must certify that she tried in good faith to get the info w/o court involvement

  • Motion to compel - if the party objects to some/all discovery requests, the requesting party can file a motion to compel

- if the court does not respond at all, or if the party objects and then ignores a motion to compel, it will face sanctions

Multiple Ps and Ds

A case may include multiple Ps or Ds if the claim

  1. arises from the same transaction or occurrence; AND
  2. raises at least 1 common question

Necessary and Indispensable parties

A party is necessary if

  • Without the party, the court cannot accord complete relief among existing parties;
  • the party's interests may be harmed if he is not joined; OR
  • the party claims an interest that subjects a party to a risk of multiple obligations

- joint tortfeasors are never necessary

- When is joinder of a necessary party feasible?

- What happens if it is not feasible?

  • Joinder of a necessary party is feasible if:

- there is PJ over the necessary party;

- Joining the party will not ruin diversity jurisdiction

  • If a necessary party cannot be joined, the court will either proceed without the necessary party (the party is dispensable) or dismiss the entire case (the party is indispensable)
- Court will consider if there is an alternative forum, the actual likelihood of harm to the necessary party, can the ct shape relief to avoid the harm to the necessary party


-D can implead a Third party D if the D intends to shift to shift the liability it owes to P to the third party (indemnity)

- never compulsory

- D must file a third party complaint and serve the TPD. Must serve w/in 14 days of serving answer, or get court permission


- a nonparty brings herself into the case

- A party may intervene as of right if the party's right is not joined and is not adequately represented

- A party may be permitted to intervene if the party has a claim that has at least a common question with the original case

Class Action Requirements

  1. Numerosity (joinder impracticable)
  2. Commonality (there is some issue in common to all class members)
  3. Typicality (Rep's claim is typical of the class)
  4. Representative Adequate (Rep will fairly and adequately represent the class


  1. Limited Fund
  2. Injunction or declaratory judgment
  3. Money Damages.

  • Not a class until certified by judge
  • Can only be settled w/ court approval

Money Damages Class Action

Additional requirements:

- common questions predominate over individual questions; AND

- class action is the superiour method to handle the dispute

The court must notify class members that they are in a class. Must tell them that they can opt out, that they will be bound if they don't, and that they can enter a seperate appearance through counsel

Class action - opting out

In a common question class action, a judge may refuse to approve the settlement of a class action unless the class members are given a second opportunity to opt out (first opportunity came when class was certified)

Diversity SMJ in Class Actions

The rep must be diverse from all defendants and have a claim that exceeds 75k

Temporary Restraining Order

- May be obtained to maintain status quo until preliminary injunction hearing

- Applicant must show that he will suffer immediate and irreparable harm if he must wait until the hearing

Preliminary Injunction

  • Maintains status quo until the court can adjudicate the underlying claim on the merits
  • Applicant must show that

(1) He is likely to suffer irreparable harm if the injunction is not issued;(2) He is likely to win on the merits of the underlying case;(3) The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and(4) The injunction is in the public interest.

Voluntary dismissal

- P has a right to voluntarily dismis by filing a notice of dismissal if done before the D serves an answer or motion for SMJ

- Can only be done w/o prejudice once.


  • If D defaults, P can file an entry of default (cuts off D's right to respond). Must still get default judgement

  • Clerk of court can enter judgment if:

-- D made no response at all;

-- The claim itself is for a sum certain in money;

-- Claimant gives an affidavit (sworn statement) of the sum owed; AND

-- D is not a minor or incompetent.

  • If clerk cannot enter judgment, goes to judge

Motion to set aside default judgment

D may move to have the court set aside a default or default judgment by showing good cause for the default AND a viable defense


- Court looks to P's allegations of fact in the complaint and asks, if these facts are true, would P win a judgment

- The facts alleged must support a plausible claim

Motion for a judgment on the pleadings

- same as 12b6 but made after answer is filed

Motion for Summary Judgment

Movant must show:

(1) There is no genuine dispute on a material fact and

(2) That she is entitled to judgment as a matter of law

- Can only look to evidence based on first hand knowledge

Rule 26f Conference

- hearing to discuss discovery schedule

- 21 days before scheduling conference, parties meet and confer.

- At hearing must present a detailed discovery plan

Pretrial Conferences

Final pretiral conference will determine the issues to be tried and evidence to be proffered at trial. Supersedes the pleadings

Seventh Amendment

- Preserves the right to jury in civil actions at law, but not in suits at equity (if both then jury decides the at law claim)

- Does not apply in state court

- must demand the jury in writing w/in 14 days after service of the last pleading raising jury triable issue

Jury Selection

- strike? # of jurors? How many need to agree?

- Parties may strike potential jurors

- Parties may strike jurors for cause an unlimited number of times

- Parties may make 3 peremptory strikes (without stating a reason) per side

- 6-12 jurors

- Unanimous Decision required, unless parties stipulate otherwise

Motions for Judgment as a matter of law (JMOL)

- Judge rules for one side once the trial has already began. The other side must have been heard

- It will be awarded when reasonable people could not disagree on the result

- should be made before the case is submitted to the jury

Renewed Motion for Judgment as a matter of law

- Same as JMOL but comes after jury has reached a verdict.

- Movant must have moved for JMOL at a proper time

Motion for a new trial

Judgment is entered but a non harmless error at trial requires that we should start over. Party moves for this w/in 28 days after judgment

Remittitur and Additur

- Judge offers the D/P to accept a lower/higher amount or have a new trial

- Can be done when the damages figure shocks the conscience

- Additur is unconstitutional in fed ct

Motion for Relief from Order or Judgment

  • We ask the d. ct. to set aside an order or judgment
  • Grounds:

1. Clerical error (Anytime)

2. Mistake, excusable neglect (Reasonable time ,never more than 1 year)

3. New evidence that could not have been discoveredwith due diligence for a newtrial motion (Reasonable time ,never more than 1 year)

4. Judgment is void (e.g., no SMJ) (Reasonable time)

How to appeal - Final Judgment Rule

- Generally, you can appeal only from final judgments (= an ultimate decision by the trial court of the merits of the entire case)

- File notice of appeal in trial court w/in 30 days after entry of final judgment

Interlocutory Appeals - exceptions to Final Judgment Rule

interlocutory appeal act: allows appeal if

  • trial judge certifies that it involves a controlling issue of law
  • as to which there is substantial ground for difference of opinion; AND
  • the court of appeals agrees to hear it

Collateral Order exception: Appellate court has discretion to hear ruling on an issue if it

  • is distinct from the merits of the case,
  • involves an important legal question, AND
  • is essentially unreviewable if parties must await a final judgment

- When there are multiple parties/claims, the trial court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay

- CoA has discretion to review class cert ruling

Extraordinary writs

- An original proceeding in appellate court to compel the trial judge to make or vacate a particular order

- available only if hte lower court is violating a clear legal duty

Choice of law: preclusion

If case 1 and case 2 are in different judicial systems, the court in case 2 applies the preclusion law of the judicial system that decided case 1

Claim Preclusion (res judicata)


  • Case 1 and Case 2 were brought by the same claimant against the same defendant
  • Case 1 ended in a valid final judgment on the merits (a judgment is assumed to be on the merits unless it was based on jurisdiction, venue, indispensable parties)
  • Case 1 and Case 2 asserted the same claim (a claim is any right to relief arising from a transaction or occurrence)

Issue Preclusion (same parties)


  • Case 1 ended in a valid, final judgment on the merits
  • The same issue was actually litigated and determined in Case 1
  • The issue was essential to the judgment in Case 1 (the finding on the issue was the basis for the judgment)

- Issue preclusion can only be used against someone who was a party to case 1

Non mutual Issue Preclusion

- Non mutual defensive use of issue preclusion: allowed if the P had a full chance to litigate in case 1

- Non mutual offensive use of issue preclusion:Most courts do not allow. Some will allow if:

  • D had a full and fair opportunity to litigate in case 1
  • D had an incentive to litigate strongly in case 1
  • P could not have easily joined Case 1
  • There have not been inconsistent findings on the issue

In which state is the executor of a decedents state a citizen?

The state that the decedent was a citizen